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ITEM 10.6
AGREEMENT FOR THE ACQUISITION OF INTELLECTUAL PROPERTY RIGHTS
This Agreement is entered into by and between The Male Edge, Inc. a
Nevada corporation (hereafter "TMEI"), and Bio-Sphere Technology, Inc., a
Delaware corporation (hereafter "BTI").
Witnesseth:
WHEREAS, BTI is the owner of all right, title and interest in the
intellectual property pertaining to the liposomal PGE-1 formula for the
treatment of male impotence and erectile dysfunctional, to the marketed under
the trade name "The Male Edge" as well as other possible trade names; and
WHEREAS, TMEI desires to acquire all related intellectual property
rights and all rights to develop, manufacture, and market "The Male Edge" and
all products derived from the technology; and
WHEREAS, BTI desires to transfer all such intellectual property rights
in exchange for the consideration set forth below;
Now, therefore in consideration of the promises and mutual covenants
contained herein, the parties hereto agree as follow:
ARTICLE I
GRANT
Section 1.01. Upon the terms and conditions set forth herein, BTI grants to
TMEI any and all intellectual property rights in and to the product "The Male
Edge" and any related technology or products, including the exclusive right to
manufacture, develop and sell "The Male
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Edge" or any related product under trade name except for such territories and
under such conditions as the parties may otherwise agree in writing signed by
both parties.
Section 1.02. TMEI has been informed that such intellectual property rights
have not been patented and TMEI agrees to promptly take all steps necessary to
patent the product and the related technology in the United States and all
other countries and locations where a significant market for the product
exists. Significant market shall be interpreted to mean such locations where
potential sales justify the expense of pursuing the prosecution of a patent
application. The failure of TMEI to promptly fulfill its obligations under this
provision shall be deemed to be a material breach of the terms of this
agreement.
ARTICLE
CONSIDERATION
Section 2.01. In exchange for the grant of such intellectual property
rights, TMEI shall require to BTI 2,856,000 shares of restricted common stock
of TMEI. Section 2.02. The parties have stipulated that the value of the
technology acquired is $5,712,000.
ARTICLE III
EMPLOYMENT AGREEMENTS
Section 3.1. TMEI shall appoint, subject to the approval of its
shareholders, Xxxxxx X. See, M.D., President of BTI, and Xxxxx X. Rather,
Secretary of BTI, as officers and directors of TMEI. See and Rather shall be
provided annual employment contracts with salary and benefits commensurate with
compensation packages standard in the industry. Section 3.2. TMEI shall further
grant to See full control over the manufacturing process of the
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product in recognition of his responsibilities and potential liabilities as the
inventor. See shall be vested with such authority as is necessary to assure the
integrity of the product, and he shall also be consulted regarding the
marketing strategies employed in the eventual marketing of the product.
ARTICLE IV
DURATION AND TERMINATION
Section 4.01. Unless this Agreement is otherwise terminated as hereinafter
set forth, all right title and interest in and to the acquired intellectual
property shall be forever retained by TMEI or its successors or assigns. In the
event of termination of this Agreement, the patent or intellectual property
rights shall be returned to Xxxxxx X. See, M.D. as the inventor.
Section 4.02. In the event of any one of the following:
(1) A party breaches the Agreement and does not cure
such breach within forty-five (45) days after notice
thereof from the other party specifying such breach;
(2) Liquidation of a party;
(3) Insolvency or bankruptcy of a party whether voluntary
or involuntary;
(4) Inability of a party to meet its obligations hereunder;
(5) Failure of a party to satisfy and judgment against it;
or
(6) Appointment of a trustee or receiver for a party;
then, and in addition to all rights and remedies which the other party may have
at law or in equity, the other party may, at its option, terminate this
Agreement by notice thereof in writing specifying the reason for such
termination and a termination date. Such termination shall become effective on
the date of termination set forth in the notice of termination, but in no event
earlier than
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forty-five (45) from the date of mailing thereof.
Section 4.03. The waiver of any default under this Agreement shall not
constitute a waiver of the right to terminate this Agreement for any subsequent
default.
ARTICLE V
NOTICES
Section 5.01. All notices required to be several under the terms and
conditions of this Agreement by any of the parties hereto upon the other shall
be in writing sent by registered mail, with a copy by regular first class mail,
to the other parties hereto at the addresses so stated herein or any later
addresses, notices of which has previously been given by one party to the
other, and the time of such notice shall start with day of deposit of such in
the Post Office by the sender. Failure of any party to give any of the notices
referred to in this Agreement shall not relieve any party to this Agreement of
its obligations under this Agreement not shall it constitute a waiver with
respect to any subsequent default. Any such notice may be addressed as follows:
Bio-Sphere Technology, Inc. The Male Edge, Inc. 0000 Xxxxx Xxxxx Xxxxxx, Xxxxx
X 0000 Xxxx Xxxxxxxx, Xxxxx 00 Xxx Xxxxx, XX 00000 Xxx Xxxxx, XX00000
ARTICLE VII
FORCE MAJEURE
Section 6.01. None of the parties hereto shall be liable in damages or have
the right to cancel for any delay or default in performing hereunder if such
delay or default is caused by conditions beyond its control, including but not
limited to Acts of God, Government restrictions, continuing domestic or
international problems such as wars or insurrections, strikes, fires, floods,
work,
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stoppages and embargoes.
ARTICLE VII
CONSTRUCTION AND INTERPRETATION
Section 7.01. This Agreement set forth the entire agreement between the
parties and supersedes all prior agreements and understandings between the
parties, and their officers, directors or employees relating to the subject
matter hereof. None of the parties has relied upon any oral representation or
oral information given to it by any representative of any of the other parties.
ARTICLE IX
SETTLEMENT OF DISPUTES
Section 9.01. All disputes arising in connection with this Agreement shall
be finally settled under the Rules of the American Arbitration Association by
one or more arbitrators appointed in accordance with the Rules of that
organization.
ARTICLE X
GOVERNMENT CONSENT
Section 10.01. It is understood that TMEI shall have the sole obligation to
secure the written approval of any regulatory agencies and boards for the
manufacturing and marketing of the product.
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ARTICLE XI
COUNTERPARTS
Section 11.01. This Agreement may be executed in any number of
counterparts, each of which so executed shall be considered an original, but
all such counterparts shall together be one and the same Agreement.
ARTICLE XII
INFRINGEMENT AND OTHER ACTIONS
Section 12.01. BTI shall assist TMEI to the extent necessary in the
procurement of any protection for, or to protect any of, TMEI's rights in and
to the Product or the use of the Trademarks in connection therewith, provided,
however, that the provisions of this Paragraph shall not be construed so as to
require or obligate BTI to provide any financial assistance hereby. Each party
shall notify the other, in writing, of any infringements or limitations by
others of the Products similar to those covered by this Agreement that may come
to their attention.
ARTICLE XIII
INDEMNIFICATION
Section 13.01. In the event of a breach of this Agreement, the breaching
party shall fully indemnify the other party and its respective employees and
agents, from all judgments, damages, legal costs and attorney's fees, claims,
suits, causes of action, or legal proceedings (including any governmental
proceedings) that result from such breach.
Section 13.02. TMEI agrees to indemnify and hold BTI and its respective
employee s agents, and each of them, harmless from all judgments, damages,
legal costs and proceedings (including any governmental proceedings) arising as
a result of or relating to the manufacture, marketing, advertising, sale,
distribution, or use of the Properties under this Agreement, (including,
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without limitation, any manufacturing, packages, labeling, or advertising
defect) not arising out of any malicious wrongs, gross negligence, or
deliberate misrepresentations of BTI relating to the Product under this
Agreement.
ARTICLE XIV
ATTORNEY'S FEES
Section 14.01. In the event of any controversy, claim, or dispute
between the parties, arising out of or relating to this Agreement or its
breach, the prevailing party shall be entitled in addition to any other relief,
to cover reasonable attorney's fees, expenses, and costs whether or not the
controversy, claim or dispute results in litigation or arbitration between the
parties.
ARTICLE XV
WAIVER OR MODIFICATION
Section 15.01. No waiver or modification of this Agreement shall be
valid unless in writing and signed by the party to be charged thereto. No
waiver of any breach of this Agreement shall be deemed a waiver of any
subsequent breach of like or similar nature.
ARTICLE
BINDING EFFECT
Section 16.01. This Agreement shall inure to the benefit of, and shall
be binding upon, the assigns and successors in interest of either party.
ARTICLE XVII
SEVERABILITY
Section 17.01. If any provision of this Agreement shall be held to be
invalid, illegal, or unenforceable, the remaining provisions shall not be
affected thereby but shall continue in full force and effect. To the extent any
provision is unenforceable, it shall be enforced to the fullest extent
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permitted by law.
ARTICLE XVIII
ENTIRE AGREEMENT
Section 18.01. This Agreement constitutes the entire agreement and
understanding between the parties and supersedes all prior representations,
promises, negotiations, or covenants, whether written or oral.
IN WITNESS HEREOF, the parties have caused this Agreement to be signed
by the respective officers hereunto duly authorized.
ATTEST:
BIO-SPHERE TECHNOLOGY, INC.
By: /s/ XXXXXX X. SEE, M.D. By: /s/ XXXXX X. RATHER
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Title: President Title: Secretary
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Date: January 7, 1994 Date: January 7, 1994
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THE MALE EDGE, INC.
By: /s/ XXXXX X. RATHER By: /s/ XXX X. XXXXXX
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Title: Secretary/Treasurer Title: Director
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Date: January 7, 1994 Date: January 7, 1997
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